Geraldton Sailors and Soldiers' Memorial Institute Act 1929

The Act establishes a statutory trust for a class of beneficiaries defined by connection to military service. The central concept is the “returned soldier,” defined in section 2 as any person eligible for membership of The Returned and Services League of Australia WA Branch Incorporated. This definition is not linked to any particular war or period of service; it tracks the membership eligibility rules of the RSL as they exist from time to time. That means the beneficiary class can expand or contract without amendment to the Act, depending on the RSL’s own constitutional criteria. The definition was amended in 1956 and again in 2011, most likely to update the name of the RSL body.

The trust property consists of three distinct categories: land (described as Portion of Geraldton town lot 54 being part of lot 1 on Diagram 3065 and lot 2 on Plan 3065, comprised in Certificate of Title Volume 768, Folio 48), chattels (furniture, fittings, goods, and chattels on the property), and the unexpended cash balance plus interest. The moneys are not held on the same trust as the land and chattels; they are to be invested under the statutory investment power in the Trustees Act 1962, and only the income may be applied to the physical property. The capital of the cash fund is therefore preserved in perpetuity, absent a sale or mortgage that would redeploy it.

A second key concept is the composition of the trustee body. Section 4 provides for five trustees: the mayor of the City of Geraldton ex officio as chairman; two ratepayers from Geraldton elected by the City Council; and two trustees appointed by the executive of the Geraldton sub-branch of the RSL. The RSL-appointed trustees serve fixed terms: one was to cease office on 1 January 1957 and the other on 1 January 1958, with subsequent appointments for two-year terms (section 4A and 4B). The Governor has a reserve power under section 4(5) to make appointments if the City or the RSL executive fails to do so. The certificate of the mayor is conclusive evidence of the names and due appointment of trustees, absent fraud (section 4(6)).

The trust is perpetual; the trustees constitute a body corporate with perpetual succession and a common seal (section 4(1)). There is no mechanism in the Act to wind up the trust, distribute the property, or vary the trusts. The only exit routes are a sale or mortgage with Governor approval, which would discharge the land from the trusts (section 6(1)(a) and (b)), but the proceeds would presumably then fall to be dealt with under the general law of trusts or another statute. The Act is a complete code for the governance of this specific memorial property.

The Act directly affects five categories of persons and bodies. First, the trustees themselves, both in their corporate capacity and as individuals. They bear the legal obligations of the trust, must use the common seal by majority vote (section 7), present annual accounts and a report to the City of Geraldton (section 11), and cannot accept remuneration for their services (section 9). Their personal liability is limited to trust property in their hands (section 10), but they remain exposed to claims for breach of trust if they misapply property or exceed powers.

Second, the City of Geraldton (now the City of Greater Geraldton under local government reforms) is affected in multiple capacities. The mayor is an ex officio trustee and chairman. The Council elects two ratepayer trustees and can replace them at any time (section 4(3)). It receives the annual financial statement and report, which must be certified by the City’s chief executive officer or auditor (section 11). If the Council fails to elect trustees, the Governor may step in (section 4(5)). The City therefore has ongoing oversight and appointment responsibilities, potentially exposing it to political or administrative costs if the trust becomes controversial.

Third, the Geraldton sub-branch of the Returned and Services League of Australia WA Branch Incorporated is both a beneficiary and an administrator. It appoints two trustees, with a term structure that ensures staggered renewal (section 4(4) to (4C)). It also has a statutory right under section 6(2) to lease the land and buildings for up to three years without Governor approval, provided it uses the property as a club for returned soldiers. This gives the sub-branch privileged access to the trust property that no other entity enjoys.

Fourth, the beneficiaries: all “returned soldiers” as defined. They have no individual right to enforce the trust through the Act, but as objects of the trust they may have standing to seek relief from a court if the trustees breach their duties. The practical effect is that veterans in Geraldton have the right to use the club house for purposes consistent with the trust, but the trustees control access and terms of use.

Fifth, the Governor of Western Australia has a gatekeeper role. The Governor’s approval is required for any sale, mortgage, or lease beyond three years (section 6(1)). This inserts executive government into decisions about disposal of community memorial property, creating a potential political dimension. The Governor also has the reserve appointment power (section 4(5)). The Registrar of Titles is required to register the trustees as proprietors under their corporate name (section 8), a process that imposes a minor administrative burden on the land titles office.

The trustees’ primary duties arise from the trusts declared in section 5. They must hold the land and chattels on trust to be used as a club house for all returned soldiers. This is a duty to apply the property to that particular purpose; they cannot use it for other community purposes, rent it to commercial operators beyond the RSL lease exception, or allow it to fall into disuse. The duty is ongoing and the beneficiaries have a legitimate expectation of access. The trustees must also invest the moneys under the investment powers in Part III of the Trustees Act 1962 and apply the income exclusively to the maintenance, upkeep, improvement, or replacement of the land, buildings, and chattels. They cannot spend the capital of the cash fund unless they sell or mortgage the land and redeploy the proceeds, which would require Governor approval.

Under section 9, the trustees have a right to be reimbursed for proper expenses incurred in carrying out their duties, but they cannot accept any remuneration or reward. This is a statutory reflection of the ordinary fiduciary principle against profit from the trust, but it is expressed as an absolute prohibition. Any trustee found to have taken a benefit would be in breach. The protection in section 10 limits a trustee’s personal liability to creditors to the trust property in his or her hands; that is, creditors cannot pursue the trustee’s personal assets beyond the trust estate. This mirrors the corporate shield of the body corporate.

The trustees have the power, with Governor approval, to sell, mortgage, or lease the land for any term subject to any conditions (section 6(1)). The approval requirement is a fetter on the trustees’ discretion; it means the trust cannot be wound up or the land monetised without executive consent. The Act contains no criteria for the Governor to consider, so the decision is at large, creating uncertainty for any would-be purchaser or lender. Without approval, the trustees can only lease for up to three years to the RSL sub-branch (section 6(2)), and the sub-branch must use the property as a club for returned soldiers. That right is not available to any other lessee.

The RSL sub-branch has a right to be considered as lessee under section 6(2) and a right to appoint two trustees. The City of Geraldton has a right to elect two trustees and to receive the annual financial statement and report (section 11). The mayor has the right to be chairman and to issue a conclusive certificate of trustees (section 4(6)). None of these entities has a right to enforce the trust other than through the general law or through the Governor’s reserve powers.

The Act creates no criminal offences. There are no penalties for breach of trust, misuse of the property, or failure to present accounts. Enforcement therefore depends on the general law of trusts and the inherent jurisdiction of the Supreme Court of Western Australia. A beneficiary (a returned soldier) or the Attorney-General (as protector of charitable trusts, if the trust is charitable) could bring proceedings for breach of trust, seeking removal of trustees, an account of trust property, or an order for compliance. The Act does not specify whether the trust is charitable; the purpose of a club house for returned soldiers may or may not be charitable depending on the extent of public benefit and whether it is limited to a closed class. If it is non-charitable, only the beneficiaries can sue, and the class is defined by RSL eligibility.

The only express enforcement mechanism is the conclusive evidence provision in section 4(6). The mayor’s certificate of the names and due appointment of trustees is conclusive in the absence of fraud. That means if the certificate wrongly names a person as a trustee, a third party (such as a purchaser or lender) can rely on it unless fraud is proved. The provision shifts the burden of verification from third parties to the mayor, but it also means that an incorrectly appointed trustee could bind the trust to a transaction. No other provision imposes a penalty for fraud or non-compliance.

The Governor’s approval power under section 6(1) is not backed by an offence if a trustee sells without approval. The sale would be void or voidable for lack of authority, but the trustees themselves face no statutory penalty. Similarly, failure to present the annual report and financial statement under section 11 carries no expressed consequence. The City could seek an order for specific performance, but the Act does not vest enforcement power in the City.

The common seal requirement (section 7) that it be affixed only by a majority of trustees and that those trustees countersign is a procedural rule. Non-compliance may affect the validity of an instrument but does not attract a penalty. The prohibition on remuneration in section 9 also lacks a penalty; a trustee who accepts a reward would be in breach of fiduciary duty and could be compelled to account.

The Act operates as a statutory trust that overrides or supplements several general laws. Section 5(b) expressly requires the trustees to invest the moneys under Part III of the Trustees Act 1962. That Part sets out authorised investments for trustees, including certain Commonwealth and State securities and bank deposits. The reference aligns the trust’s investment powers with the default regime, meaning the trustees are not limited to the old court-approved list and can rely on the broader statutory power. But the Act does not confer the full range of trustee powers under the Trustees Act; for example, the power to insure or to employ agents is not mentioned, so those would be implied from the general law or from the Trustees Act where not excluded.

The Act dissolves the previous incorporation under the Association Incorporation Act 1895 (section 3(1)) and validates any deeds or contracts previously executed by that association (section 3(2)). The current Associations Incorporation Act 2015 does not apply to the trust; the trustees are a body corporate under this Act alone, not under the Associations Incorporation regime. This means the trust is not subject to the reporting and governance requirements of that Act, but it also lacks its default dispute resolution and winding-up provisions.

The Land Titles Act (now the Transfer of Land Act 1893) interacts through section 8, which requires the Registrar of Titles to register the trustees under their corporate name as proprietors in fee simple. This is a statutory direction that overrides any requirement for a formal transfer from the old association. The trustees become the registered proprietors without the need for a dealing. The Act also provides that upon a sale with Governor approval, the land can be transferred to a purchaser free of the trusts (section 6(1)(a)), effectively overriding the Torrens system’s usual approach to notified trusts. The certificate of title would then issue to the purchaser unencumbered.

The Act is part of a legislative package. The compilation note lists three related Acts that must be read with it: the Geraldton Sailors and Soldiers’ Memorial Institute Enabling Act 1934, the Geraldton Sailors and Soldiers’ Memorial Institute (Trust Property Disposition) Act 1938, and a related Act, the Geraldton Sailors and Soldiers’ Memorial Institute Lands Vesting Act 1933. These Acts likely deal with further land transfers or variations of the trust. Without their texts, it is impossible to say whether they expand the powers or modify the trusts. Their existence means the 1929 Act is not the complete picture; any practitioner dealing with the trust must obtain all four Acts.

The Local Government Act 1995 interacts through the City’s role in appointing trustees and receiving accounts. The 1996 amendment changed references from “municipality” or “town” to “City of Geraldton”. The annual accounts must be certified by the City’s chief executive officer or auditor (section 11), which gives the City a formal audit role beyond mere receipt. The City could use its audit to identify irregularities and potentially bring them to the attention of the Governor or the court.

The Act received Royal Assent on 31 December 1929 and commenced immediately. It has been amended six times. The first amendment was the Geraldton Sailors and Soldiers’ Memorial Institute Act Amendment Act 1956 (No. 18 of 1956). That amendment restructured the trustee appointment system. It inserted subsections (4A), (4B), and (4C) into section 4, creating fixed terms for the RSL-appointed trustees and a staggered transition from the old indefinite appointments. It also amended section 2 to update the definition of “returned soldier” and made changes to section 6, likely expanding the lease power to include the three-year exception that now appears in section 6(2). The 1956 amendment is the most substantial; it moved from a stable board to a revolving appointment system.

The Local Government (Consequential Amendments) Act 1996 (No. 14 of 1996) made minor changes to sections 4 and 11 to reflect the shift from “Council of the Municipality of Geraldton” to “City of Geraldton” following local government restructuring. This was a mechanical update with no substantive policy change.

The Trustees Amendment Act 1997 (No. 1 of 1997) amended section 5(b) to replace the reference to investment under the Trustees Act 1902 with a reference to Part III of the Trustees Act 1962. This brought the trust’s investment power in line with the modernised trust legislation. The old Act had been repealed.

The Standardisation of Formatting Act 2010 (No. 19 of 2010) made cosmetic amendments under section 51, updating language and formatting across the statute book. It amended sections 3, 4, and 6 to conform to contemporary legislative drafting standards.

The Statutes (Repeals and Minor Amendments) Act 2011 (No. 47 of 2011) attempted to amend section 6(c) but the compilation note records that the amendment was not included because it was unclear where the amendment was intended to be made. This is a notable drafting failure; the text of the Act remains as it was before 2011 in that respect. Practitioners should be aware that the intended change was never effected.

The most recent amendment was the Statutes (Repeals and Minor Amendments) Act 2014 (No. 17 of 2014), which amended section 6, probably to update a reference to the RSL body. The Act has not been amended since 2014. A reprint was issued in 2003 incorporating all amendments up to that date.

The source text contains no reference to any litigation, and no reported cases are cited in the Act or its notes. The absence of litigation is consistent with a small, private trust that likely operates without controversy. However, several issues could have produced disputes. The definition of “returned soldier” by reference to RSL eligibility could raise questions if a person claims to be a returned soldier but is not eligible for RSL membership, or if the RSL changes its eligibility rules to include or exclude categories of veterans. Any such dispute would require a court to interpret section 2 as at the relevant time.

The Governor’s approval power under section 6(1) has no statutory criteria. If the trustees seek approval for a sale and the Governor refuses, and the beneficiaries object, there could be litigation over whether the refusal is valid or whether the Governor must act reasonably. The Act does not require the Governor to give reasons, nor does it provide for review of a refusal. A disappointed beneficiary might argue that the Governor’s discretion is subject to judicial review on administrative law grounds, but that would be a challenge to executive action rather than the trust itself.

The conclusive evidence provision in section 4(6) could be tested if a trustee’s appointment is challenged on the basis of fraud. The provision states the certificate is conclusive “in the absence of fraud.” That leaves open what constitutes fraud and who bears the burden of proof. A third party who relies on the certificate might be protected, but if the certificate was obtained by a false statement by the RSL executive or the City, the affected trustee might sue for a declaration that the appointment is void.

No Superior Court of Western Australia has published a judgment involving this Act. LexisNexis and Westlaw searches would likely yield no results. The trust is operationally obscure and the property is modest, so the cost of litigation probably exceeds any benefit. That does not mean a dispute is impossible; a falling-out between the City and the RSL over control of the trust could generate litigation, but none is recorded.

Several traps await practitioners dealing with this Act. The first is the definition of “returned soldier.” It is not a statutory definition of general application; it is specific to this Act and depends on the membership eligibility criteria of the RSL WA Branch. Those criteria may change. If the RSL broadens membership to include non-veterans or family members, the trust’s beneficiary class could expand beyond the original memorial purpose. Conversely, if RSL membership is restricted to certain conflicts, the club house could become unusable for recent veterans. The definition creates a moving target.

The second gotcha is the Governor approval requirement for any sale, mortgage, or lease beyond three years (section 6(1)). A trustee who enters into a transaction without approval risks the transaction being void. A purchaser or lender must verify that the Governor’s approval has been obtained before settlement. The Act does not say how the approval must be evidenced; a letter from the Premier’s office or a minute of Executive Council would be typical, but no form is prescribed. The prudent party would insist on a copy of the approval instrument before paying money.

The third gotcha is the lease exception in section 6(2). It allows a lease of up to three years to the RSL sub-branch without Governor approval, but only if the sub-branch uses the property as a club for returned soldiers. If the sub-branch sub-lets or changes the use, the lease may be invalid as exceeding power. The exception is personal to that sub-branch; no other entity can obtain a lease without approval, even for a short term.

The fourth gotcha is the unclear 2011 amendment. The compilation note states that the amendment to section 6(c) was not included because it was unclear where the amendment was intended. This means the current text of section 6(c) may not reflect the legislature’s intent. Anyone relying on the section must check whether the amendment was ever enacted elsewhere or if it remains a dead letter. The official copy of the Act may still show the original wording.

The fifth gotcha is the absence of a winding-up provision. The trust is perpetual. If the club house falls into disrepair, the RSL sub-branch disbands, or returned soldiers no longer use the facility, the trustees cannot simply sell and distribute the proceeds to another charity. Without Governor approval for sale, the property is locked in trust. Even with approval, the proceeds would not be free; the trusts would likely attach to the sale proceeds unless the Governor’s approval expressly discharges them. The Act does not address what happens if the purpose becomes impossible. The trustees would need to apply to the Supreme Court for a cy-près scheme or for directions, which is costly.

The sixth gotcha is the annual reporting requirement. Section 11 requires a financial statement certified by the City’s CEO or auditor and a report of proceedings. The Act does not say what happens if the trustees fail to submit these. The City could potentially remove trustees for non-compliance, but the Act does not give it that power. The Mayor’s certificate under section 4(6) might be withheld if the report is not provided, causing a knock-on problem for any transaction requiring proof of trustee identity.

Compliance for the trustees is ongoing and procedural. The first step is to ensure the trustees are properly appointed. The mayor is a trustee ex officio, so no appointment is needed for that position. The City must elect two ratepayer trustees, and the RSL executive must appoint two trustees in accordance with section 4(4) to (4C). The appointments should be recorded in minutes and the mayor should issue a certificate under section 4(6) confirming the current trustees. That certificate should be updated whenever a trustee changes. The certificate itself is conclusive evidence for third parties absent fraud, so the mayor must take care that it is accurate.

The trustees must ensure the land and chattels are used as a club house for returned soldiers. That means maintaining the property for that purpose, setting rules for access, and not diverting it to other community uses. If the RSL sub-branch leases the property under section 6(2), the lease must be for no more than three years and must require the sub-branch to operate it as a club for returned soldiers. Any longer lease or any lease to a different entity requires prior Governor approval under section 6(1). The trustees should seek legal advice before negotiating a lease or sale to ensure the approval process is followed.

The cash fund must be invested under Part III of the Trustees Act 1962. The trustees should obtain a list of authorised investments from the State Trustees or a financial adviser and ensure the fund is producing income. That income must be applied exclusively to maintenance, upkeep, improvement, or replacement of the land, buildings, and chattels. The trustees should keep separate accounts for capital and income, and should not use income for other expenses.

The common seal must be kept securely. Section 7 requires that it be affixed only by a majority of trustees and that those trustees countersign the instrument. The minutes of the relevant trust meeting should record the resolution authorising the affixing. The seal should not be used for routine documents; it is only needed for formal instruments such as leases, transfers, or mortgages.

The trustees must prepare annual accounts and a report of proceedings for each financial year. The accounts must be certified by the City of Geraldton’s chief executive officer or auditor (section 11). That means the trustees must cooperate with the City’s audit process, providing access to books and records. The report should describe the activities of the trust during the year, including any maintenance work, events at the club house, lease arrangements, and any applications for Governor approval. Both the certified accounts and the report must be presented to the City. The trustees should keep a copy for their own records and for any beneficiary who requests it.

If the trustees decide to sell, mortgage, or lease the land beyond the section 6(2) exception, they must apply to the Governor for approval. The application should be made through the Department of Premier and Cabinet, setting out the terms of the proposed transaction, the reasons for it, and how it is consistent with the trust purpose. The trustees should not commit to the transaction until the approval is received in writing. After approval, the transaction can proceed, and for a sale the land will be transferred free of the trusts (section 6(1)(a)). The trustees should then deal with the proceeds in accordance with the trust or as directed by the Governor.

There is no requirement to register the trust with any regulatory body, but the trustees should ensure the property is insured and that rates and taxes are paid from the income. The prohibition on remuneration in section 9 means trustees cannot be paid, but they can claim reimbursement for out-of-pocket expenses such as travel to trustee meetings or costs of engaging a lawyer or accountant. They should keep receipts and document each reimbursement. Finally, the trustees should periodically review whether the definition of “returned soldier” has changed due to RSL rule amendments, and adjust access policies accordingly. If the trust’s purpose becomes obsolete, the trustees should seek legal advice about applying to the court for a cy-près scheme or other relief, rather than simply ceasing operation.